Braga v. Genlyte Group, Inc.

United States Court of Appeals
For the First Circuit

No. 04-2429

ANTONIO C. BRAGA and DEBRA BRAGA,

Plaintiffs, Appellants,

v.

GENLYTE GROUP, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Stahl, Senior Circuit Judge,

Lipez, Circuit Judge,

and Oberdorfer,* Senior District Judge.

Brian Cunha, with whom Brian Cunha & Associates, P.C. were on
brief, for appellants.
Timothy P. Van Dyck, with whom Brian H. Lamkin and Edwards &
Angell, LLP, were on brief for appellee.

August 25, 2005

*
Of the District of the District of Columbia, sitting by
designation.
 OBERDORFER, Senior District Judge. This case tests the

line between the workers’ compensation rights of an employee

injured on a job in Massachusetts and the immunity from tort suit

provided to the injured employee’s employer by the same

Massachusetts workers’ compensation law that benefitted the injured

employee, where the employer has participated in a series of

mergers during which the employee’s job status remained unaffected.

On the unique and relatively complex facts here, we find and

conclude that this plaintiff’s tort claim is barred by the

Massachusetts workers’ compensation law, pursuant to which one of

defendant’s merger successors has previously compensated plaintiff.

Plaintiff-appellant Antonio Braga (“Braga”) received

workers’ compensation benefits for an injury he sustained while an

employee of Genlyte-Thomas Group, LLC (“Genlyte-Thomas”). He and

his wife are suing in tort for that same injury Genlyte Group, Inc.

(“Genlyte”). Braga had worked as an employee of Genlyte before it

contributed substantially all of its assets (along with those

contributed by Thomas Industries, Inc.) to create Genlyte-Thomas.

The Bragas claim that defects in a hydraulic press Braga was

operating while working for Genlyte-Thomas before that merger

caused his injury. The Bragas base their claims against Genlyte on

its status as successor, by merger, to Lightolier Incorporated

(“Lightolier”); it had owned the allegedly defective press when it

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merged with Braga’s then-employer. The Bragas claim that

Lightolier knew the press was defective at the time of its merger,

but that it did not disclose or remedy the defects.

The Bragas allege that this knowledge of the defect

created inchoate liability for Lightolier that carried over in the

merger, giving the Bragas a cause of action against Genlyte.

Genlyte argues essentially that any liability was satisfied, and

any tort claims barred, by Massachusetts workers’ compensation law

– the privileges and immunities of which also carried forward in

the merger. The Bragas counter that those immunities do not apply

here because their tort claims, based on Lightolier’s conduct,

arose independently from Genlyte’s workers’ compensation

obligations.

This is the second time this case has come up on appeal.

The district court initially dismissed the Bragas’ claims as barred

by workers’ compensation in a one-sentence order that cited no

Massachusetts law. Finding that the case presented a “complex and

fact-bound” question of state law, a previous panel of this court

reversed and remanded for “analysis of a more fully developed

factual scenario under Massachusetts law.” Braga v. Genlyte, Inc.,

57 Fed. Appx. 451, 454 (1st Cir. 2003) (unpublished) (“Braga I”).

On remand, the district court granted summary judgment for Genlyte,

again holding that “plaintiffs’ claims are barred by workers’

compensation.”

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 The Bragas contend that the changes in Braga’s employer’s

corporate structure over time relieve him of the barrier to tort

claims generally applicable to those enjoying the benefits of

workers’ compensation. Genlyte argues that its workers’

compensation tort immunity survived the mergers. The key question

is whether, but for the mergers, Lightolier would have been liable

to the Bragas. We hold that it would not have been. Accordingly,

we conclude that the workers’ compensation barrier was not lifted

by the transactions involved here and we affirm summary judgment in

favor of the defendant, albeit on a theory different from that

employed by the court below.

I. BACKGROUND

On November 18, 1998, Braga was injured while operating

a hydraulic press (the “Press”) at a Genlyte-Thomas manufacturing

facility in Fall River, Massachusetts (the “Fall River facility”).

The Press became activated while Braga was trying to remove a piece

of metal jammed in it. It slammed down on Braga’s hand, causing

severe and permanent damage. He alleges that the Press was

defective in that it lacked adequate guards to prevent an operator

from unintentionally activating it, and that this defect caused his

accident.

A. Corporate History

In January 1980, Braga began working as a press operator

at the Fall River facility for Aluminum Processing Corporation

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(“APC”). APC, a wholly-owned subsidiary of Lightolier, operated

the Fall River facility at that time.

In September, 1980, Lightolier purchased the Press,

second-hand, for use in its manufacturing facility in Norwich,

Connecticut (the “Norwich facility”).

On Friday, January 15, 1982, APC (along with all then-

existing subsidiaries of Lightolier) merged into Lightolier. Three

days later, on Monday, January 18, 1982, Lightolier merged into BZ

Holdings Corporation (“BZ Holdings”), a wholly-owned subsidiary of

BZ Acquisition Corporation (“BZ Acquisition”). That same day, BZ

Holdings changed its name to “Lightolier Incorporated.”1 Braga’s

employment status continued unchanged, save that his employer was

now Lightolier/BZ rather than APC.

In 1985, BZ Acquisition, which owned Lightolier/BZ,

merged into Genlyte. Lightolier/BZ thus became a wholly-owned

subsidiary of Genlyte.

In January 1991, Lightolier/BZ merged into Genlyte.

Genlyte continued to operate the former Lightolier/BZ business

under the name “Lightolier.” Braga’s employment again continued

unchanged, save that his employer was now Genlyte.

1
To distinguish among the various Lightolier entities, we
refer only to the original, pre-January 15, 1982, company as
“Lightolier.” We refer to the corporation that existed from
January 15-18, 1982, as “Lightolier/APC,” and to the post-January
18, 1982, entity as “Lightolier/BZ.”

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 Around this time, the Norwich facility was converted from

manufacturing to warehousing use. In June 1991, Genlyte

transferred the Press from its Norwich facility to its Fall River

facility, where Braga worked.

On April 28, 1998, Genlyte and Thomas Industries each

contributed substantially all of its corporate assets to create a

new entity, Genlyte-Thomas. Genlyte became the majority owner of

Genlyte-Thomas and Thomas became the minority owner. Genlyte-

Thomas continued to do business under the “Lightolier” name.

Braga’s employment again continued unchanged, save that his

employer was now Genlyte-Thomas. Braga was still an employee of

Genlyte-Thomas when his accident occurred on November 18, 1998.

After that accident, the Occupational Safety and Health

Administration inspected the Press and cited Genlyte-Thomas for a

violation because the “operating buttons of the [Press] were not

adequately guarded to prevent unintentional operation.”

B. Litigation History

The Bragas first filed a “Complaint for Discovery”

against Lightolier in state court in 1999. That complaint was

dismissed without prejudice after some discovery.

The Bragas next filed a substantive suit against

Lightolier in state court on September 6, 2001. After the case was

removed to federal court on diversity grounds, plaintiffs amended

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the complaint to name Genlyte, one of Lightolier’s successors by

merger, as the defendant.

On November 21, 2001, Genlyte moved to dismiss the

complaint for failure to state a claim on the ground that it was

barred by the workers’ compensation law. On January 4, 2002, the

district court granted that motion to dismiss in a one-sentence

endorsement on the face of the motion: “Allowed, as Lightolier,

Inc. would also be an employer for this purpose. Herbolsheimer v.

SMS Holding Co., 608 N.W.2d 487 (Mich[. Ct. App.] 2000).” The

Bragas appealed.

On February 13, 2003, a panel of this court reversed and

remanded for further proceedings. The court was “reluctant to

affirm an order of dismissal where the district court neglected to

analyze the questions raised by the complaint under the law

governing the case,” that is, Massachusetts state law. Braga I, 57

Fed. Appx. at 454. The court noted that the Supreme Judicial Court

of Massachusetts had addressed the “questions raised by the

intersection of the immunity of an employer under the workers’

compensation scheme and successor liability” in Gurry v. Cumberland

Farms, 550 N.E.2d 127 (Mass. 1990), which should be “central” to

the analysis of this issue. Braga I, 57 Fed. Appx. at 454.

On remand, following limited discovery, plaintiffs filed

an amended complaint. The Bragas asserted claims of negligence

based on “(Old) ‘Lightolier’ . . . negligently transferring by

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means of the merger, to BZ Holdings/(New) ‘Lightolier’ the

defective [Press]” and of breach of the implied warranty of

merchantability. His wife asserted a claim of loss of consortium.

On February 13, 2004, Genlyte moved for summary judgment

on the basis of an Agreed Statement of Undisputed Facts.

On October 5, 2004, the district court granted that

motion and again dismissed the plaintiffs’ claims. The district

court’s analysis centered, as directed, on Gurry. The district

court noted that Gurry permitted a suit in tort to proceed against

an employer as successor of a corporation that “was never

decedent’s employer and would have been susceptible to a third-

party claim outside of the workers’ compensation protection.” On

the other hand, the court recognized that, in Gurry, claims based

on the conduct of a predecessor that had employed Gurry “failed

because ‘all [the] acts and omissions alleged against [it] arose

out of the direct employment relationship.’” (Citing Gurry, 550

N.E.2d at 131.) The district court framed the dispositive question

as whether Braga had been “an employee of Lightolier, the allegedly

negligent predecessor corporation.” The court focused on whether

Braga was employed by Lightolier/APC from its creation on Friday,

January 15, 1982, through its merger with BZ Holdings three days

later, on Monday, January 18, 1982. The district court held that

Braga’s having “performed no work over the weekend is irrelevant to

his employment status.” Because Braga’s employment was never

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terminated, it was “clear that [Lightolier/APC] did employ him,

although it only had a brief existence.” Based on this reasoning,

the district court concluded that plaintiffs’ claims were barred by

the workers’ compensation statute.

II. DISCUSSION

We review the district court’s grant of summary judgment

de novo. Burke v. Town of Walpole, 405 F.3d 66, 75 (1st Cir.

2005). Like the lower court, we are to “constru[e] the record in

the light most favorable to the nonmoving party and resolv[e] all

reasonable inferences in that party’s favor.” Whitlock v. Mac-

Gray, Inc., 345 F.3d 44, 45 (1st Cir. 2003). Summary judgment is

proper only if the record establishes that “there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” Fed. R. Civ. P. 56(c)). We are

not bound by the district court’s rationale, but may affirm its

grant of summary judgment “on any ground supported by the record.”

Cimon v. Gaffney, 401 F.3d 1, 4 (1st Cir. 2005).

A. The Massachusetts Workers’ Compensation Scheme

The Massachusetts workers’ compensation statute generally

provides the exclusive remedy for employees who suffer work-related

injuries. Mass. Gen. Laws ch. 152, § 24. A non-employer third

party tortfeasor, however, is not protected by the immunity from

suit by an injured worker that workers’ compensation law affords

that worker’s employer. Mass. Gen. Laws ch. 152, § 15. Injured

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employees are thus free to sue third party tortfeasors whose

negligence caused or contributed to their work-place injuries.

Where a third party whose actions might subject it to a

tort suit by an injured worker later merges with the injured

worker’s employer – so that the employer and the “third party”

become one and the same – a dilemma arises. After a merger, the

surviving corporation is “liable for[] all liabilities and

obligations of each of the constituent corporations in the same

manner and to the same extent as if such . . . surviving

corporation had itself incurred such liabilities or obligations.”

Mass. Gen. Laws ch. 156B, § 80(b). As successor to the alleged

tortfeasor, the surviving entity should ordinarily be subject to

suit by the injured employee to the same extent the third party

would have been absent the merger. On the other hand, under the

circumstances here, neither the plaintiffs, nor the state decisions

on which they rely, explain to our satisfaction why the injured

employee’s employer is not immunized from tort liability by the

same law that provided compensation administratively to the injured

employees. See, e.g., infra Part II.D.3.

B. The Dual Persona Doctrine

The Bragas claim that they should be able to sue Genlyte

as successor to the original Lightolier despite the otherwise

applicable workers’ compensation immunity. They rely on what is

commonly referred to as the “dual persona” doctrine. According to

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that concept an “employer may become a third person, vulnerable to

tort suit by an employee, if – and only if – it possesses a second

persona so completely independent from and unrelated to its status

as employer that by established standards the law recognizes that

persona as a separate legal person.” 6 Arthur Larson & Lex K.

Larson, Larson’s Workers’ Compensation Law § 113.01[1], at 113-2

(2005) (“Larson”); see also Gurry, 550 N.E.2d at 131 (citing this

definition from an earlier edition of the Larson treatise). Where

such a “dual persona” exists, the dual persona doctrine may permit

a tort suit only if the “nonemployer persona” owed the injured

employee duties “totally separate from and unrelated to” duties

arising out of the employment relationship. Larson, § 113.01[4],

at 113-10 (emphasis in original).

Gurry is the leading Massachusetts case on the “dual

persona” doctrine. The facts in Gurry, as here, are somewhat

involved. Gurry worked for United Cranberry Growers Associates,

Inc. (“Cranberry”), a wholly-owned subsidiary of Delaware Food

Store, Inc. (“DFS”). Cumberland Farms Dairy, Inc. (“Dairy”),

another DFS subsidiary, sold managerial services to Cranberry. As

part of these duties, Dairy designed, and commissioned a contractor

to build, buggies for Cranberry. The next year, Cranberry and

Dairy merged into DFS, which in turn merged into Cumberland Farms,

Inc. (“Cumberland”). Gurry continued at his job, with Cumberland

becoming his employer as a result of the mergers. Gurry was killed

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while working for Cumberland, operating one of the buggies.

Gurry’s beneficiaries received workers’ compensation payments. The

Gurry plaintiffs nonetheless sued Cumberland, alleging that

negligent design, manufacture and maintenance of the buggy by its

predecessors, Cranberry and Dairy, caused Gurry’s death.

The question thus presented was one of first impression

in Massachusetts: could an employee injured on the job sue an

employer for negligence on the part of the employer’s corporate

predecessors? The Supreme Judicial Court found that the “answer

depends on the interrelationship of two statutes: the business

corporation law and the workers’ compensation act.” Gurry, 550

N.E.2d at 130 (citations omitted). The Gurry court observed that,

under Massachusetts business corporation law, “Cumberland stood in

the shoes of Cranberry [] and Dairy . . . , inheriting any

liabilities for tortious conduct, as well as any privileges in the

form of statutory immunities, that those predecessors would have

had.” Id. at 131 (citing Mass. Gen. Laws ch. 156B § 80(a)).

The court held that Cumberland could not be sued for

Cranberry’s alleged negligence because Cranberry itself “would have

been immune from suit since all the acts and omissions alleged

against [it] arose out of the direct employment relationship”

between it and Gurry. Id. On the other hand, “Dairy was never

Kevin Gurry’s employer, and would have been susceptible to a third-

party claim as a tortfeasor outside of the protection of workers’

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compensation” if not for the merger. Id. (citing Mass. Gen. Laws

ch. 152 § 15 (1988 ed.)). Had the merger not occurred, plaintiffs

would have been able to bring a third party suit against Dairy, the

company that designed and supervised the manufacture of defective

equipment for the decedent’s then-employer, Cranberry. The Gurry

court emphasized that “the workers’ compensation statute was

intended to deal with injuries and liability occurring in the

course of the employer-employee relationship.” Id. Since a claim

based on Dairy’s conduct did not arise from an employment

relationship, but “from the negligence of an independent

corporation,” allowing it to go forward would not interfere with

the purpose of the workers’ compensation statute. The court

concluded that “insulat[ing] Cumberland from liability it acquired,

as a result of its merger with Dairy[,] because [Cumberland]

happened to be Kevin Gurry’s employer, would subvert the important

aims of both the workers’ compensation system and the business

corporation statute.” Id.

C. Braga’s Employment Status

The district court held that workers’ compensation bars

this suit because Braga was employed by Lightolier/APC during its

“brief existence.” Braga’s employment status during the three-day

period from January 15-18, 1982 is the primary issue the parties

address on appeal.

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 Plaintiffs argue that this question cannot be resolved as

a matter of law but requires a detailed, fact-specific inquiry into

the relationship between Braga and Lightolier/APC. As explained

below, we disagree.

Massachusetts business corporation law provides that “all

of the estate, property, rights, privileges, powers and franchises

of the constituent corporations” automatically vest in the

surviving corporation upon merger “without further act or deed.”

Mass. Gen. Laws ch. 156B, § 80(a)(5). Despite the Bragas’

hyperbolic claim that treating employees as assets that transfer by

law upon merger means viewing them as “chattels of the

corporation,” a corporation’s employment contracts are counted

among its assets. See, e.g., Modis, Inc. v. Revolution Group,

Ltd., 11 Mass. L. Rptr. 246, 1999 WL 1441918, at *6 (Mass. Super.

Ct. Dec. 29, 1999) (describing “employment contracts and employment

‘arrangements’” as “assets [that] became the property of [the

surviving corporation] after the merger”); cf. Dickson v. Riverside

Iron Works, Inc., 372 N.E.2d 1302, 1304-05 (Mass. App. Ct. 1978)

(plaintiff may enforce employment contract against surviving

corporation after merger).

The Bragas argue that employees do not automatically

continue working for a surviving corporation after a merger but

must establish employment relationships anew with that entity. Cf.

Holliday v. Pers. Prods. Co., 939 F. Supp. 402, 405-07 (E.D. Pa.

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1996) (rejecting argument that workers’ compensation immunity would

not apply after employer’s merger with third party tortfeasor

unless employee consented to be employed by new corporate entity).

If that were the law, employees of merging corporations would lose

their jobs instantaneously upon a merger, absent some affirmative

conduct showing that they now worked for the surviving corporation.

Similarly, the employment status of those in otherwise identical

positions would vary with their awareness of, and view toward,

changes in corporate status that did not affect the conduct of

their jobs in any way. None of the cases plaintiffs cite, however,

supports such odd results. See, e.g., Langevin’s Case, 91 N.E.2d

920, 921 (Mass. 1950); Abbott v. Link-Belt Co., 88 N.E.2d 551, 554

(Mass. 1949). Indeed, none even addresses the relevant question,

namely, how a merger affects continuity of employment. We see no

basis for holding that there was a gap in Braga’s employment during

the January 15-18, 1982, period. He simply continued as an

employee of the corporate entity that succeeded his employer, first

Lightolier/APC, then Lightolier/BZ.

However, the question of whether Lightolier/APC employed

Braga is not dispositive, but merely a red herring here. This can

be seen by moving the analysis back one level, thus framing it in

terms of the initial merger of Lightolier and APC (Braga’s original

employer) rather than the merger of Lightolier/APC and BZ Holdings

three days later. Whether or not Lightolier/APC employed Braga

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during its three-day existence, Lightolier – which it succeeded –

unquestionably never employed him. Since Lightolier owned the

allegedly defective Press when it merged with Braga’s then-

employer, APC, Lightolier’s merger with APC appears to raise the

same liability issues that the Bragas claim are raised by

Lightolier/APC’s merger with BZ Holdings. But the mere fact that

Lightolier did not employ Braga would not establish successorship

liability. Lightolier/APC can inherit Lightolier’s third-party

liability only if such liability would have existed absent the

merger. The plaintiffs in Gurry were able to sue the decedent’s

employer not merely because its predecessor, Dairy, had not

employed him, but because Dairy “would have been susceptible to a

third-party claim as a tortfeasor outside of the protection of

workers’ compensation” if not for the merger. 550 N.E.2d at 131

(emphasis added).

The foregoing considered, the question we must answer is

whether Lightolier “would have been susceptible to a third-party

claim” but for the merger. If so, Genlyte may be sued. If not, it

may not.

D. Could the Bragas Have Brought a Third Party Claim Against
Lightolier?

Although Gurry provides the question, it does not provide

the answer. While the Supreme Judicial Court of Massachusetts

“alluded favorably to the [dual persona] theory” in Gurry, it has

“never explicitly adopted” it, much less established its scope or

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set parameters for it. Barrett v. Rodgers, 562 N.E.2d 480, 482

(Mass. 1990). No Massachusetts court has considered whether Gurry

should be extended to circumstances like these, where an employer’s

predecessor merely owned defective equipment when it merged with

the employer and an employee was later injured by that equipment.

1. Preliminary Issues on Applying Massachusetts
Law

A federal court that faces an unresolved state law

question is to “‘ascertain the rule the state court would most

likely follow under the circumstances.’” Braga I, 57 Fed. Appx. at

453 (quoting Blinzler v. Marriott Int’l, Inc., 81 F.3d 1148, 1151

(1st Cir. 1996)). It is reasonable to “assume that the state court

will follow the rule that appears best to effectuate relevant

policies.” Moores v. Greenberg, 834 F.2d 1105, 1107 (1st Cir.

1987) (internal quotation and modification omitted). “We may seek

guidance ‘in analogous state court decisions, persuasive

adjudications by courts of sister states, learned treatises, and

public policy considerations identified in state decisional law.’”

Braga I, 57 Fed. Appx. at 453 (quoting Blinzler, 81 F.3d at 1151).

In so doing, “we must exercise considerable caution when

considering the adoption of a new application” of state law that

could “expand [its] present reach.” Doyle v. Hasbro, Inc., 103

F.3d 186, 192 (1st Cir. 1996). A federal court sitting in

diversity must “take care not to extend state law beyond its well-

marked boundaries in an area . . . that is quintessentially the

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province of state courts.” Markham v. Fay, 74 F.3d 1347, 1356 (1st

Cir. 1996).

Extrapolating from analogous decisions in sister states

and policy pronouncements of Massachusetts courts, we conclude that

Gurry should not be extended to permit suit here.

2. Relevant Massachusetts Policy

The Supreme Judicial Court of Massachusetts has described

the “very broad” exclusivity provision of the workers’ compensation

scheme as its “cornerstone.” Berger v. H.P. Hood, Inc., 624 N.E.2d

947, 949 (Mass. 1993). It has also cautioned courts against

creating “[a]ny change in compensation law which would permit a

covered employee to recover compensation benefits and, in addition,

permit litigation by the employee against his employer to recover

for an injury clearly covered by the Workmen’s Compensation Act.”

Longever v. Revere Copper & Brass Inc., 408 N.E.2d 857, 860 (Mass.

1980). “The instances in which a single legal entity . . . will be

liable under both the workers’ compensation scheme and in a lawsuit

for a single injury arising out of a single workplace incident are

very rare.” Barrett, 562 N.E.2d at 483.

3. Analogous Decisions from our Sister States

With this Massachusetts background in mind, we turn to

analogous decisions of our sister states. Any exception to the

immunity that workers’ compensation schemes provide employers “must

be narrowly construed to fit only the policy reasons that give rise

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to its inception, and not allowed to expand to envelop situations

that [workers’ compensation] was otherwise intended to cover.”

Herbolsheimer v. SMS Holding Co., 608 N.W.2d 487, 495 (Mich. Ct.

App. 2000); see id. (“dual-persona doctrine should be interpreted

more narrowly rather than more broadly” where its scope is

unclear). It is important that the dual persona doctrine “not be

used for the purpose of simply evading the exclusivity provision of

the Workmen’s Compensation Act.” Kimzey v. Interpace Corp., 694

P.2d 907, 912 (Kan. Ct. App. 1985); cf. Gurry, 550 N.E.2d at 131

(evaluating how suit would affect “important aims” of workers’

compensation and corporate successorship principles).

The majority – and, we conclude, better-reasoned – view

among courts that have considered circumstances akin to those here

is that an employer cannot be held liable on the basis of a

predecessor’s mere ownership of defective equipment when it merged

with the employer. See Corr v. Willamette Indus., Inc., 713 P.2d

92, 96 (Wash. 1986) (“No obligation or liability would have existed

prior to the merger, and none should be created by the merger that

could not have existed independently.”); Vega v. Standard Mach.

Co., 675 A.2d 1194, 1197-98 (N.J. Super. Ct. App. Div. 1996)

(predecessor’s ownership of defective machine at merger did not

create liability, when merger did not render predecessor a “seller”

or “supplier” and consequently predecessor had no duty to warn).

The key question is whether the employer had a separate duty to the

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employee-claimant outside of the employment relationship. See

Hatch v. Lido Co. of New Eng., 609 A.2d 1155, 1157 (Me. 1992)

(predecessor’s negligent pre-merger installation or maintenance of

equipment in its own facility for its own use did not implicate a

“separate and unrelated duty” for the post-merger entity, beyond

that of an employer to its own employees); Herbolsheimer, 608

N.W.2d at 496-97 (question of liability hinged on whether

predecessor had “separate obligations” to claimant).

The flaws in plaintiffs’ approach are clearer when

considering the continuity of the corporate entities. Plaintiffs

are arguing in effect that, on the one hand, Genlyte-Thomas is a

continuation of Lightolier/APC for the purpose of holding the

successor corporation liable. On the other hand, plaintiffs argue

that Lightolier/APC is so distinct and separate from its successors

that its “transfer” of the Press via merger created new duties and

liabilities. The latter view is inconsistent not only with the

former, but with the very nature of a corporate merger: “[T]he

consolidation of two or more corporations is like the uniting of

two or more rivers, neither stream is annihilated, but all continue

in existence. A new river is formed, but it is a river composed of

the old rivers, which still exist, though in a different form.”

Atlantic & B. Ry. v. Johnson, 56 S.E. 482, 484 (Ga. 1907) (quoting

Thompson on Corporations § 8341). “The object of the consolidation

of two or more solvent corporations into one is not usually to wind

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up the business of the old corporations but to continue as a unit

that which theretofore had been separate.” Proprietors of Locks &

Canals on Merrimack River v. Boston & M.R.R., 139 N.E. 839, 841

(Mass. 1923). It is the continuity of the constituent corporations

that plaintiffs apparently fail to grasp in theorizing that the

transfer of equipment through a merger can itself create third

party liability. Where the “transferor [] and transferee []

bec[o]me one and the same as of the moment of transfer,” there is

“[i]n effect, . . . no transfer (and therefore no duty owed) from

one entity to another, since at the moment of transfer there was

only one entity, the surviving corporation.” Duvon v. Rockwell

Int’l, 807 P.2d 876, 881 (Wash. 1991) (describing rationale of

Corr).

Although the cases discussed above represent the majority

view, the states have not taken a uniform approach to the present

factual scenario. Plaintiffs rely heavily on Billy v. Consol.

Mach. Tool Corp., 412 N.E.2d 934 (N.Y. 1980), in which the New York

Court of Appeals permitted suit to go forward against an employer

based on its status as successor to corporations that had designed

and manufactured allegedly defective equipment for their own use.2

The equipment passed to the successor corporation through a series

of mergers. The court held that, but for the merger, plaintiff

2
As plaintiffs point out, Gurry cites Billy favorably.
However, it does so only in general terms that sheds no light on
the instant dispute. Gurry, 550 N.E.2d at 131.

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could have sued the predecessor corporations based on their design

and manufacture of the defective equipment. The court concluded

that this potential liability survived the merger, “since the

obligation upon which [the successor] is being sued arose not out

of the employment relation, but rather out of [the] independent

business transaction” of the merger itself. Id. at 940; see also

Schweiner v. Hartford Accident & Indem. Co., 354 N.W.2d 767, 772-73

(Wis. 1984) (holding that, but for merger, plaintiff could have

sued predecessor that manufactured defective equipment as third

party, but not analyzing basis for such a suit).

A strong dissent in Billy exposed the flaws in the

majority’s reasoning. The dissent noted that the inchoate tort

liability the predecessor incurred after installation of the

defective equipment for its own use was “to anyone injured by the

defect other than an employee, as to whom [workers’] compensation

law immunized it from common-law liability.” Billy, 412 N.E.2d at

942 (Meyer, J., dissenting) (emphasis in original). The Billy

dissent reasoned that the successor company inherited the

predecessor’s immunity from liability, including immunity from an

employee’s suit. As a result, the merger provided no basis for

liability; it was not the equivalent of a sale or transfer of

assets (with the concomitant legal obligations this would entail),

and the act of merging itself did not, as a matter of law, create

liability. Id. at 942-44; see id. at 942 (“[E]ven under the most

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liberal application of the [dual persona] doctrine a manufacturer-

employer is held protected by compensation immunity when the

product was manufactured solely for his own use and not for

distribution to the general public.”).

III. CONCLUSION

We are persuaded that the Supreme Judicial Court of

Massachusetts would adopt the reasoning of those courts that have

declined to extend the dual persona theory to circumstances like

those here. Lightolier purchased the Press for its own use. It

did not sell the Press or allow non-employees to use it. (It is

not even alleged to have modified the Press.) In the hypothetical

world in which no merger occurred, the Press could have caused an

injury for which plaintiff would have received workers’

compensation only if he worked for Lightolier. See supra Part

II.A. In such a case, plaintiff would obviously have no third-

party claim. It is the merger itself on which plaintiff relies to

stake his present claim. Allowing a merger to increase, rather

than preserve, inchoate liability is not consistent with the policy

of the workers’ compensation act or the law of corporate

successorship. We are reluctant to expand the dual persona theory

to any application beyond that which Massachusetts has already

approved, particularly since the policy reasons on which the Gurry

court relied are not implicated here. We are even more reluctant

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where, as here, the better reasoned cases from other jurisdictions

hold that such an expansion would not be warranted.

For the foregoing reasons, the district court’s decision

is AFFIRMED.

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